R and S
[2002] FMCAfam 355
•25 October 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| R & S | [2002] FMCAfam 355 |
| PROPERTY – Contributions. Family Law Act 1975, ss.79, 75 Marriage of Ferraro 16 Fam LR 1 |
| Applicant: | C A R |
| Respondent: | D C S |
| File No: | ADM 2576 of 2002 |
| Delivered on: | 25 October 2002 |
| Delivered at: | Darwin |
| Hearing Date: | 16 October 2002 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Bowler |
| Solicitors for the Applicant: | Steven M Clark Pty Ltd |
| Counsel for the Respondent: | In person |
ORDERS
That within 60 days of the date of these orders, the husband pay to the wife the sum of $81,493.20.
That upon the payment:
a)The wife do all such acts and things and sign all such documents necessary to remove the caveat in place on the former matrimonial home situate at 20 D Street, W in the state of South Australia (hereinafter called “the real property”);
b)The husband indemnify the wife against all rates, taxes and outgoings with respect to the real property of whatsoever nature and kind;
c)Any interest equitable or otherwise in the real property of the wife rest in the husband.
That unless specified in these orders:
a)Each party be solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the banks records thereof;
b)Insurance policies are deemed to be in the possession of the beneficiary thereof;
c)Superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the continuation of payment out of such entitlements.
d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
That in the event that the husband is unable to comply with order 1 hereof, the parties shall sign all documents and writing and do all things necessary to place the real property on the open market for sale at a price to be determined by the parties and in default of agreement as determined by a person nominated by the president of the Real Estate Institute of South Australia for the time being and following such sale the proceeds be distributed as follows:
(i)Firstly to pay the costs and commission of sale;
(ii)Secondly, 60% of the remaining sum, less the sum of $4,000.00 to be paid to the wife;
(iii)the balance to be paid to the husband.
All applications are otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADM 2576 of 2002
| C A R |
Applicant
And
| D C S |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings for the settlement of matrimonial property. The applicant is C A R (formerly S) “the wife”. The respondent is D C S “the husband”.
The parties were married for many years between 1973 and 2001. The marriage involved a conventional division of responsibilities between the parties. The husband was the breadwinner during the marriage. He has worked continuously at G M H as a welder and fabricator since 1968. The wife was engaged in home duties. She was a conscientious homemaker and had primary responsibility for caring for the parties’ two children J and D.
During the course of their long marriage the parties have accumulated assets of comparatively modest value. As a result there must inevitably be some financial hardship caused to each of them due to the end of the marriage and the necessity for these assets to be divided between them now. Their main asset is the former matrimonial home situated at
30 D Street, W. The husband inherited a half-share in this property from his mother when she died in 1981. He subsequently purchased his sister’s half-share in the same property. As a result the property has remained registered in his name to this day.
It is the wife’s position that the contributions of the parties during the marriage in their different roles as breadwinner and homemaker respectively were essentially equal and that as a result there should be an equal division of matrimonial property between the parties. The husband does not accept this. He points to his inheritance of the former matrimonial home in 1981 as a significant factor in his favour. It is his position that it is appropriate that the assets of the marriage be divided between the parties on the basis that he receives 75 per cent of the assets and the wife 25 per cent.
The husband is now aged 55. The wife is 47 years of age. She is working on a part-time basis as an animal attendant. She has no skills to speak of. The husband continues to work at GMH and earns a wage significantly greater than the wife. As a result the wife argues that her future needs and the fact that she will have greater difficulty in future supporting herself than the husband will, calls for a further distribution of assets in her favour of between 15 and 20 per cent. The husband rejects this contention and points to the fact that although both J and D are now adult, they continue to live with him in the former matrimonial home and are to some degree dependent upon him for their support. In these circumstances he does not accept that there should be any additional distribution of assets in favour of the wife greater than the one quarter which he currently advocates.
These in brief are the matters that I must determine.
Applications
The wife has retained solicitors throughout the proceedings. The husband has acted on his own behalf throughout. The wife relies on the following documents filed on her behalf:
i)Her form 3 application filed on 15 January 2002;
ii)An affidavit sworn by her and filed on 13 May 2002;
iii)A further affidavit sworn by her and filed on 18 June 2002;
iv)A statement of her financial circumstances filed on 15 January 2002.
The husband relies on the following documents that he has filed:
i)His amended response filed on 30 May 2002;
ii)An affidavit sworn by him and filed on 30 May 2002;
iii)A statement of his financial circumstances filed on 5 March 2002.
Since the parties separated the wife has lodged a caveat on the title of the D Street property to safeguard her interest in it. It is not necessary to set out in full the respective applications of the parties. In her application the wife indicated that she sought payment of the sum of $80,000.00 from the husband together with the transfer to her of some 75 Telstra shares. In return she would remove the caveat on the D Street property and formally acknowledge that she had no further interest in the property. However, during the course of the hearing, her counsel, Mr Bowler indicated that his client sought the transfer to her of a sum equal to 70 per cent of the matrimonial assets in exchange for the caveat withdrawal.
In his response the husband indicated that in exchange for the withdrawal of caveat from the wife he would pay to her a sum to be determined by the Court. However as I have already indicated he made his position clear during the hearing that this sum should be equal to one quarter of the matrimonial assets.
Background
The husband was born on 5 December 1946. The wife was born on 22 August 1955. The parties met in 1972 and married on 24 November 1973. J was born on 6 May 1974. D was born on 17 February 1984. The wife left the paid workforce when J was born. At that time she was employed as a shop assistant. Apart from some limited employment during the marriage selling Avon products and being a dog groomer, she did not do any paid work during the marriage. The husband began work at GMH in 1968 and has worked there continuously ever since. The parties agree that they separated on 21 June 2001 when the wife left the former matrimonial home at D Street. Since the parties separated the wife has begun work as a part time animal attendant at the Animal Welfare League. She currently works up to 30 hours per week. She is paid at the rate of $15.32 per hour. She has formed a new relationship with T H with whom she lives in rented premises situated at 35 S Road, Elizabeth Park.
The major asset available for division between the parties is the D Street property. The parties agree that this property is currently valued at $125,000.00. The property is unencumbered. The husband’s mother died in 1981. She bequeathed the D Street property to the husband and his sister, P S in equal shares. A short time after the death of his mother, the husband purchased Ms S’s half share in the property for the sum of $11,000.00. This sum was borrowed from the National Bank and has long since been repaid. The property has been registered in the sole name of the husband since he purchased Ms S’s half share in the early 1980’s.
The issues
There can be no doubt that the marriage between the parties was a long one. There is no dispute that during the marriage the parties shared their responsibilities in a conventional manner. By that I mean that the husband went out to work and was the breadwinner for the family and the wife was responsible for the upkeep of the home and the care of J and D. Neither party criticises the other in respect of the way in which the other carried out their responsibilities during the marriage. The vast majority of the husband’s income was used to support his family. The wife was a diligent and competent homemaker. Both parties contributed during the marriage to the full extent of their respective abilities and theirs was in every sense a joint marriage.
It is the husband’s position that he suffers from tension headaches, heart palpitations and sciatica. He asserts that it is likely that he has only another three years work at General Motors Holden and that after this time it is unlikely that he will be able to find paid work again. Although he accepts that both J and D are in paid employment, it is his position that as they continue to live at home with him and they do not pay regular board, their support is a considerable drain on his resources.
It is the wife’s position that the husband’s current financial and employment positions are superior to hers. She asserts that he has access in future to both accrued superannuation and long service leave. Benefits which she will not enjoy. She asserts that he also has a considerably greater income than she does and that this is likely to be the position for some years to come. She also points to the fact that due to the long marriage she has been out of the workforce for many years and as a result has no employment skills to speak of. A situation that is in contrast to that of the husband.
The main issues for determination in the case are as follows:
·How should the various contributions of the parties during the marriage be assessed.
·What weight, if any, should be given to the fact that the husband contributed one half of the value of the D Street property in 1981 when it was bequeathed to him as a result of the death of his mother.
·What adjustments, if any, should be made in respect of the distribution of the matrimonial property between the parties bearing in mind their age, state of health, future financial resources and the capacity of each of them for employment in the future.
The evidence
Both the husband and the wife are decent and hard working people.
I found both of them to be honest witnesses, who gave their evidence in a frank and straightforward manner. As a result there were few areas of dispute between the parties in respect of their evidence and what occurred during the course of their marriage. They each refrained from a wholesale criticism of the other. To their great credit they were able to agree as to the value of most of the items of matrimonial property and in particular the D Street property. However I have no doubt that the husband has been deeply affected by the end of the marriage and has had grave difficulties in coming to terms with these proceedings. One of the consequences of the end of the marriage is that the parties’ limited resources must now be divided between them and this must inevitably lead to a decline in the standard of living that they each enjoyed during the marriage.
In these reasons for judgement, findings of fact are made on the balance of probabilities, having regard to the evidence, and my observations of the parties. In what follows, statements of fact constitute findings of fact.
Contributions during the marriage
(a) Property acquired at the outset of the marriage
When the parties met the husband was working as a machinist at G M H and had done so since 1968. The wife was working as a shop assistant. Neither of the parties had assets of any great value at the outset of the marriage. In each of their cases they had a car but no other significant items of property.
(b) Work history of the parties and the acquisition of property
From the start of the marriage the parties lived at what was then the husband’s mother’s home at D Street. They lived in a caravan that was situated at this property. This enabled them to minimise expenses and also enabled care to be provided to the husband’s mother when she fell ill.
The husband has worked at GMH throughout the marriage. The wife ceased her full time employment as a shop assistant in 1974 when J was born. Thereafter she has had only very short-term jobs such as selling Avon products or dog grooming which provided her with only minimal payment.
The husband’s mother died in 1981. She had apparently been ill for some time before her death. As a result of her death the husband was bequeathed a half-share in the D Street property. The other half was left to his sister, P S. As the husband and his family were living at D Street it made obvious sense for the husband to arrange to purchase his sister’s interest in the property. This was done at some time in 1983 for the sum of $11,000.00. This money was borrowed by the husband from the National Bank. The parties lived at D Street from the time of their marriage until their separation.
During the marriage the husband’s regular weekly income was used to pay back the money borrowed from the Bank and to pay all other outgoings in respect of the property. The money owed to the Bank has long since been repaid.
The husband has an interest in production car racing. During the marriage he purchased a number of production racing cars using his wages in part for this purpose. He also purchased tools to pursue this interest. He also liked to have a sum of approximately $5,000.00 available to him and the family in the Bank to cover exigencies such as holidays and unforeseen emergencies.
The husband provided for the day-to-day needs of his family from his weekly income. The wife and the children were totally dependent on the husband for their financial maintenance during the marriage. Apart from the husband’s interest in motor racing, an interest later shared with J and D, the family lived modestly and within their budget. However no assets of any great real value were acquired during the marriage apart from a number of cars and a package of Telstra shares. The husband purchased the shares by means of a sum of money borrowed by him from the Citibank. It seems this money has now been repaid.
During the marriage the husband contributed a regular but small sum of money to the Holden Employees Superannuation Fund each week. He has also accrued entitlements to long service leave during his employment with GMH.
(c) Contributions by way of homemaking and parenting
The wife was the primary carer of J and D during the marriage. She also performed the vast majority of household tasks for both the husband and the children during the marriage. Her role during the marriage was to focus on the needs of the family. As a result the wife did not seek part-time employment to any great degree and certainly she did not seek to retrain herself for any other pursuit other than being a homemaker. The husband accepted in his evidence that the wife did most of the household chores around the home such as washing, ironing, cooking, cleaning and attended to the children’s needs. In his words “she did a good job”. He also conceded in his evidence that the wife did not lead an extravagant lifestyle and was a thrifty housekeeper. As a result of the family’s modest income the wife was entitled to family allowance from Social Security. The wife carefully applied these sums to the needs of the children, particularly in respect of providing for their school uniforms, school fees and their travel costs to and from school.
The evidence also indicates that the wife would attend to the needs of the husband’s mother during the last years of her life. It seems that this lady was bedridden and needed assistance with bathing, feeding, getting in and out of bed and other personal needs. It must have been of great assistance to her to have the wife living close at hand.
I believe that these are relevant matters when the question of the husband’s contribution in the form of his half-interest in the D Street property is considered.
At the time of the hearing before me both J and D were still living at home. Although the evidence is not clear in this regard it seems that they have lived at home for the vast majority, if not for all of their lives. It seems that until the parties separated it was the wife who attended to most of their domestic needs.
Events since separation
The parties separated on 21 June 2001 when the wife left the former matrimonial home. She took with her a small cupboard and a cane chair, both items of modest value and some items of manchester, glassware and crockery. It was necessary for her to find rented accommodation first at Davoren Park and then at Elizabeth Park. The wife also withdrew a sum of $3,176.46 from the National Australia Bank, which was half of the joint savings of the parties at the time of separation.
At the time of separation the husband had in his possession three motor cars: a 1980 Commodore racing car; a 1980 Holden four-door sedan and a 1977 Holden Monaro. The husband retained these cars, however in October and December of 2001 he paid to the wife the sum of $3,350.00 which he indicated at the time represented half of the value of the 1980 Holden and the 1977 Holden Monaro. The Monaro apparently being worth $5,800.00 and the Holden being worth $900.00.
Since separation the wife has obtained work as an animal attendant at the Animal Welfare League. She works up to thirty hours per week and is paid $15.32 per hour. This equates to a weekly income of approximately $350.00 net per week. However her hours are not consistent. The husband has continued to work at GMH. He earns a gross salary of $911.26 per week. However after payment of tax and health insurance he is left with a net income of $640.42 per week.
The husband took an overseas holiday to France, Germany and Switzerland in the middle of 2002. This cost him approximately $7,500.00. He has a credit card debt in respect of the holiday.
The parties’ present circumstances and future prospects
The husband is 55 years of age. He has been in the sole employment of GMH since 1968. He has indicated that he suffers from a number of health problems. These include tension headaches, heart palpitations and right-sided sciatica. He provided a brief medical report from his general medical practitioner in support of his position. However in cross-examination he indicated that he had suffered from heart palpitations since he was fifteen years of age and no medical cause for them could be found. He also indicated that the understandable distress that he had felt at the end of his marriage had been a major factor in his tension headaches. The medical report indicated that he had suffered the sciatica in June of 2000. The evidence does not indicate that the husband has been forced to take any lengthy periods of time away from his work due to illness. As a result I formed the view that he is a person in reasonably good health for his age. Certainly there is nothing to indicate that the husband is in any way incapacitated to pursue his normal line of work.
Of more importance is the evidence provided by the husband that he believes that it is possible that he will only be able to keep working for another three years or until he is 58, although the compulsory retirement age is 65 and he would like to work to this age if possible. In a general way the husband indicated that his skills at GMH are threatened by new technology and the management of the company would prefer to replace older staff with younger people. I have no way of assessing the truth or otherwise of this statement, although the husband did concede that GMH are currently enjoying a good trading period. I would have thought that after nearly thirty-five years of service with the same company the husband would be well placed to receive some form of retrenchment package to compensate him for his lost years of employment in the event that his services were terminated in three years time. In all the circumstances I have formed the view that on balance it is likely that the husband will work on for several more years to come. This is certainly his intention and there is no compelling evidence that his employers have any fixed plans to change the nature of their workforce. In addition there is no compelling evidence to indicate that the husband will be forced to resign from his employment prematurely as a result of ill health.
It is the husband’s case that as a result of J and D continuing to live with him, he is placed under some financial pressure. J is now 28 years of age and D is 18. Both are in full time employment. J is a motor mechanic and earns approximately $450.00 per week. He has a girlfriend with whom he spends a lot of time. As a result he is at home with his father approximately two to three nights per week. J is apparently paying off a motor car and this is a considerable drain on his finances. D is employed as a welder. He earns approximately $220.00 per week. He spends most of his time at home. The husband does not require either J or D to pay any board. In my view both J and D are capable of making some financial contribution towards the running of the husband’s household. In my view it is not reasonable for the husband to excuse either J or D from paying board and then rely on this as a reason why his financial circumstances are more straitened than they otherwise would be.
The husband has been a member of the Holden Employees Superannuation Fund since 1 January 1969. He provided a copy of his benefit statement as at 30 June 2001. This indicates that his resignation benefit at that time was $38,191.59. His estimated benefit on retirement is calculated to be $43,362.35. This could be converted to a pension of $4,362.35 per annum. In addition at the present time the husband has accrued 538.33 hours of long service leave. This equates to a sum of approximately $10,000.00.
The wife is currently 47 years of age. Apart from some arthritis, she is in good health. She completed the equivalent of year 11 prior to her marriage. She has no formal skills. For all essential purposes she was out of the paid workforce for the period from J’s birth in 1974 until she began working as an animal attendant after the parties separated. During the marriage the wife did not pursue any course of study. It is in my view likely that her choice of work in future will be limited to unskilled positions. Her annual salary is in the vicinity of $24,000.00 compared to that of $47,000.00 for the husband. She has accrued superannuation in an amount of $1,125.22 since the parties separated and she entered the workforce.
There is little evidence regarding the wife’s relationship with Mr H other than he earns a wage of $400.00 per week and that he and the wife share expenses and rent in respect of the property in which they are currently living in Elizabeth Park.
The law applicable
Section 79 of the Family Law Act defines the Court’s powers in determining applications for property settlement. Sub-section 2 of section 79 provides that:
“The Court shall not make an Order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.”
Section 79(4) sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters include:
i)The financial and non-financial contributions made directly or indirectly by or on behalf of each party or by a child to the acquisition, conservation or improvement of any property of the parties;
ii)The contribution made by a party to the welfare of the family including any contribution made in the capacity of homemaker or parent;
iii)The effect of any proposed order upon the earning capacity of either party;
iv)The matters referred to in sub-section 75(2) as far as they are relevant;
v)Any other order made under the Family Law Act affecting a party to the marriage or a child of the marriage; and
vi)Any child support payable.
Section 75(2) of the Family Law Act sets out the matters which must be taken into account by the Court when determining applications with respect to maintenance. This is the prospective element of the determination of the application for property settlement. The assessment of contributions during the marriage is the retrospective element.
In the Marriage of Ferraro 16 Fam LR 1 the Full Court said at page 23:
“A now well established line of authority in this Court indicates the approach normally to be taken in the exercise of the discretion in Section 79 proceedings. That approach is firstly to ascertain the property of the parties at the time of the hearing, the to consider “contributions” of the parties within paragraphs (a) – (c) of Section 79(4) and then consider the matters in paragraphs (d) – (g), more especially paragraph (e) which takes up by reference the provisions of Section 75(2) which are generally referred to as the “Section 75 Factors.”
The Court is therefore required to determine the following matters:
i)The assets, liabilities and financial resources of the parties to the marriage;
ii)The relevant contributions of each of the parties;
iii)The means and needs of each of the parties and the other prospective components to the claims of each of the parties pursuant to section 75(2) and then to identify if any alteration should be made to the entitlements of either of the parties having regard to the section 75(2) factors;
iv)After determining the entitlement of each of the parties in relation to the alteration of property interests, the Court must then consider any application for spousal maintenance if relevant.
Assets and liabilities
The parties were able to agree as to the value of the majority of items of matrimonial property. They disagreed in respect of the value of the Holden Monaro and 1980 Holden vehicles currently in the possession of the husband. The husband attempted to tender a document, which purported to be a valuation of these vehicles. Counsel for the wife objected to the tender of this document on the basis that the author of the valuation was not available for cross-examination. I upheld the objection. In the circumstances of the case it seems to me to be appropriate to ascribe the value the husband gave to these vehicles in October and December of 2001 when he paid half of their value to the wife.
Accordingly I find that the assets available for distribution are as follows:
30 D Street, W $125,000.00 1989 Holden Commodore (wife) $4000.00 Wife’s savings $900.00 Husband’s savings $5,780.00 Telstra Shares (husband) $727.50 1980 Commodore Racer (husband) $4,750.00 1980 Holden manual (husband) $900.00 1977 Holden Monaro (husband) $5,800.00 Tandem car trailer (husband) $1,200.00 Furniture and household effects (husband) $6,812.00 Total $155,869.50
There are no liabilities to be taken into account in respect of this sum. However it must be borne in mind that the wife has already received a sum equivalent to one half of the value of the 1977 Holden Monaro and the 1980 Holden manual. Nor in my view is it appropriate to include in the pool of assets either the husband’s or the wife’s savings, as the joint savings of the parties were divided when the parties separated. Accordingly to avoid distortions to the pool of assets available for distribution these items must be subtracted, leaving a total available to be divided between the parties of $142,489.50.
The financial resources of the parties are their future entitlements to superannuation. As the law currently stands, these items cannot be regarded as property. In each of the parties’ cases, it is as follows:
Husband’s superannuation ........................ $38,191.59
Husband’s long service leave..................... $10,000.00
Wife’s superannuation................................ $ 1,125.22
Assessment of contributions during the marriage
On any view, this was a lengthy marriage. The parties were married on 24 November 1973 and separated on 21 June 2001. They lived together for twenty-eight years. They had two children together. The husband worked throughout the marriage. I have no doubt that he worked hard at GMH. He in large part contributed his wages to the provision of support for his wife and family. The wife was a full-time parent and homemaker during the vast majority of the marriage. Similarly I have no doubt that she performed these tasks to her utmost ability and that she was a competent and devoted homemaker and parent. The overall impression I have from the evidence of them both is that they have contributed equally in their respective roles. The husband was essentially the breadwinner and the wife essentially a parent and homemaker.
The one factor that mitigates against the finding of equal contribution by the parties is the husband’s contribution of the one half share in the D Street property that he inherited from his late mother in 1981. This was a contribution of approximately $11,000.00 over twenty years ago.
In Quaresimini & Quaresimini (1999) FamCA 1314, the Full Court said:
“The section 79 exercise is not a pure accounting exercise. It is an exercise in identifying the various matters to be considered under section 79 and weighing them up one against the other before reaching what is an appropriate order to be made, which order may not be made unless it is just and equitable. The mAr in which disparate contributions have to be measured, especially initial capital contributions, has been the subject of much discussion.”
Recently in Pierce & Pierce (1999) FLC 92–844; Ellis, Baker & O’Ryan JJ made reference to several of the authorities. Their Honours said at FLC 85,811:
“In our opinion it is not so much a matter of erosion of contribution but a question of what weight should be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions both of the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.”
“…there is no principle that the length of the marriage leads to a likelihood that other contributions will outweigh or weigh equally with ‘a particular contribution’. It is a matter of assessing the contributions of all relevant kinds in each case to arrive at an outcome which is both appropriate and just and equitable. In some cases particular contributions may be outweighed or equalled by other ones. In other cases particular contributions may be so disproportionate to other contributions as to merit special recognition.”
The husband and the wife lived with the husband’s mother at the D Street property. This was in the early years of their marriage and the declining years of the husband’s mother. The husband’s mother was in poor health in the last years of her life. In her role as a homemaker, the wife contributed to the wellbeing of the husband’s mother by nursing and caring for her. In those circumstances, I do not accept that the contribution of the inheritance of the half share in the D Street property can be regarded as solely the husband’s. In my view it is not “so disproportionate” a contribution as to merit “special recognition”. In any event the contribution was made over twenty years ago. By far the greatest increase in the value of the property can be attributed to inflationary forces over the last two decades. Matters which have no reference to either of the parties. Accordingly, I do not believe that it would be either just or equitable to regard the husband as having made a significantly greater contribution towards the acquisition of the assets of the marriage than the wife by virtue of his inheritance of the D Street property from his late mother.
These considerations lead me to the view that the various contributions of the parties during the marriage in their respective roles of breadwinner and homemaker must be regarded as equal.
Section 75 (2) factors
I am required to consider the matters set out in section 75(2) and in particular to consider whether any further adjustment should be made in favour of either party.
Both parties appear to be in reasonable health and both are currently in the workforce. There is an age gap of over eight years between the parties and as a result it is likely that the wife has a longer remaining working career before her than the husband does. However there can be no doubt that for the years of his remaining career the husband will earn a significantly greater salary than the wife will. He also has the skills that he has developed over a thirty four-year career with GMH and the added security that such continuity of employment brings. The wife is not similarly placed. She has no skills and has little experience in the workforce. As a result it is likely that she will remain in part time, casual and unskilled work for some time to come. It is difficult to see that her employment prospects are likely to improve in the future.
In addition the husband will have access in future to financial resources in the form of his superannuation and long service leave that are grossly in excess of those that are currently available to the wife. As a result, provision for his retirement has to some extent already been made. This is in stark contrast to the wife’s position.
Both parties are entitled to a reasonable standard of living after a lengthy marriage of some twenty-eight years. In view of their ages and earning capacities, neither party is necessarily in a position to borrow any substantial sum in order to assist with their future housing. The husband indicated that he is fearful that he will not be able to borrow sufficient money to enable him to retain the D Street property following these proceedings. The wife wishes to receive a sufficient sum in settlement to enable her to purchase a modest home in which to live. In the circumstances of this case it is reasonable that both parties be left in a position that will as far as possible enable each of them to own a piece of real property in which to live following these proceedings. However due to the size of the asset pool available to be divided between them, it is likely that each of them will have to go into debt to achieve this objective.
In view of these factors and chiefly because of the superior earning capacity of the husband and his superior financial resources, there should be an additional adjustment in favour of the wife. In my view to arrive at a just and equitable result between the parties, the assets should be divided as to 60 percent to the wife and 40 percent to the husband.
I have found that the sum total of the assets available for distribution is $142,489.50. 60 percent of this sum amounts to $85,493.70. The wife has already in her possession her car worth $4,000.00. This means that she is entitled to receive the sum of $81,493.70 from the husband.
It is reasonable that the husband be given some time to see if he is able to borrow sufficient funds for this sum to be paid to the wife. In this regard I am going to allow a period of 60 days for him to raise this sum. If he is unable to borrow sufficient funds to pay this amount to the wife, the D Street property must be sold. The parties should bear equally the costs of sale and the wife should receive 60 percent of the net proceeds of sale less the sum of $4000.00 representing the car that is in her possession.
For all these reasons the orders of the Court will be as set out at the commencement of these reasons for judgement.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: C M White
Date: 25 October 2002
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